First Amendment: Is Hobby Lobby decision a win-win?

Outrage over the Supreme Court’s decision in the Hobby Lobby case reached fever pitch last week as congressional Democrats prepared to introduce legislation to reverse the ruling.

“Your health care decisions are not your boss’s business,” Sen. Patty Murray, D-Wash., told the New York Times. “Since the Supreme Court decided it will not protect women’s access to health care, I will.”

Of course, any attempt to reverse Hobby Lobby will fail in the House of Representatives. So Democrats are looking to the midterm elections — already sending fund-raising appeals headlined “Supreme Court decides that corporate rights trump women’s rights.”

Before going off that deep end, let’s all take a deep breath — and take a closer look at what the high court did and did not do.

I would argue that the Supreme Court’s 5-4 decision in Burwell v. Hobby Lobby Stores is neither the all-out assault on women’s rights alleged by some on the Left — nor the major expansion of religious freedom trumpeted by many on the Right.

Instead, the Hobby Lobby ruling is a narrowly tailored attempt to balance the conscience claims of religious owners of closely held businesses against the government’s interest in ensuring that employees of those businesses receive health coverage, including full access to contraception services.

True, the Court’s finding that the Religious Freedom Restoration Act of 1993 protects closely held corporations breaks some new ground.

“Protecting the free-exercise rights of corporations like Hobby Lobby,” argues Justice Samuel Alito in the majority opinion, “protects the religious liberty of the humans who own and control those companies.”

In a strongly worded dissent joined by three other justices, Justice Ruth Bader Ginsberg argues that religious owners of businesses like Hobby Lobby must comply with the contraception mandate. Recognizing closely held corporations as “persons” protected by RFRA, says the dissent, allows religious employers to impose their beliefs on employees — and opens the door to endless lawsuits over a parade of claims for religious exemptions.

But, as Justice Alito takes pains to explain, the Hobby Lobby decision “is concerned solely with the contraceptive mandate.” In most other instances, the government will have compelling interests such as health and safety that will trump religious claims for exemption when no less restrictive alternative is available.

What tips the scale in favor of Hobby Lobby in this case, in the view of the Court’s majority, is the fact that the government has already provided an accommodation for nonprofit organizations with religious objections to the contraceptive mandate.

Writing for the majority, Justice Alito acknowledges that the government may have a compelling interest in full health-care coverage for women. But if the government can accomplish that interest and simultaneously protect religious conscience — as it has done with religious nonprofits — then the government must make the accommodation.

That’s exactly what’s going to happen. In the wake of Hobby Lobby, the Obama administration will create a workaround for closely held corporations with religious objections to some forms of contraception — modeled on the one already in place for religious nonprofits (in which, for example, the insurer excludes contraceptive coverage from the employer’s plan and provides separate payments for contraceptive services).

The result will be a win-win: Religious owners will be protected — women employees will be fully covered.

This outcome, I believe, best upholds American principles and ideals. Striking a balance between religious claims of conscience and laws designed to serve the common good is a balancing act as old as the Republic.

From the founding period when Quakers were exempted from military service to more recent accommodations for Amish families to withdraw their children from school at age 14, adult Jehovah’s Witnesses to refuse blood transfusions, Native Americans to use peyote in religious ceremonies (to name but a few), the United States has long been one of the rare nations in the world to take claims of religious conscience seriously.

It’s sometimes complicated and often messy — but protecting religious freedom is what makes America a haven for the cause of conscience.

Charles C. Haynes is senior scholar at the First Amendment Center. His email address is chaynes@freedomforum.org.